Stile: Even defeat could benefit gay marriage advocates

Same-sex marriage advocates lost the vote but got exactly what they wanted.

They didn't get a historic law extending the right and dignity of marriage to gay couples. That was not going to happen Thursday, and every supporter who swarmed the State House for one last charge at a legislator's conscience knew it.

No raw, emotional rendering of family history, no persuasive argument as a descendant of the Civil Rights struggles from slavery to women's suffrage and the 1960s Civil Rights movement, was going to convert enough "no" votes into the needed 21 "yes" votes.

That works well in sentimental Frank Capra movies

of the 1930s, but not in Trenton, where the conscience is no match for political survival.

So why badger legislators with a final full-court press of lobbying knowing that defeat was all but certain?

The process produced two strategic consolation prizes for their certain return to the court. And those prizes, advocates believe, will become invaluable ammunition for the next phase of the crusade.

First, the debate forced foes of gay marriage to admit that the current civil union law, enacted three years ago to comply with a Supreme Court ruling, simply isn't working. Republican Sen. Gerald Cardinale of Demarest and Democratic Sen. John Girgenti of Hawthorne, argued that the civil union law made the gay marriage proposal unnecessary, but they conceded that it needed more work.

"For each of the problems [with the civil union law] there is a solution if we put our minds to it, and there is a solution without doing violence to marriage," Cardinale said during his speech.

But that's another way of saying the fix needs fixing. Or put another way, gay couples continue to face discrimination despite the civil union law, which was supposed to confer the same legal rights and benefits on gay couples that heterosexual couples get through a civil marriage.

The 2006 court decision, which led to the civil union law, punted on the question of marriage and said it was for the Legislature to decide.

Well, the Democratic process has, for all intents and purposes, run its course. That makes the tally sheet of Thursday's vote an important document: It puts a final stamp on a legislative process that failed to comply with the court order. Gay marriage advocates believe the court will be more likely to answer the question of "marriage" instead of deferring to the Legislature.

"Along the way, a lot of folks asked, well if there is a shot that you might lose, why would you call for a vote today?" said Steven Goldstein, director of Garden State Equality, the chief group lobbying for the bill. "The answer is … that there is conclusive proof that the legislative process has been exhausted. And the Legislature failed its state constitutional duty to provide equal protection under the law."

Another round in the court is an uncertain trek, but it's clear that the Legislature is no longer an option. The new Legislature, which is seated next Tuesday, is not likely to take up the cause knowing that Republican Governor-elect Chris Christie has vowed to veto the measure.

It's also clear that the next Democratic Senate president, Stephen Sweeney, wants nothing to do with it. Sweeney, soon to be the second most powerful person in Trenton, abstained on the grounds that the measure was doomed for defeat. Instead of declaring where he stood on a gut-check, civil rights issue, Sweeney made a strategic decision to play it safe.

"They [same sex marriage advocates] made a very strong case, and I would have been very happy to pass it," Sweeney said. "It wasn't close, unfortunately."

The certainty of another court battle is also likely to mobilize social conservatives to possibly preempt same sex marriage foes by possibly asking voters, in a ballot referendum next November or next year, whether they want to amend the constitution to allow for same sex marriage. Same-sex foes are confident that voters will reject it, as they did in California in 2008.

"We will be working towards that," said Len Deo, chairman of the Family Policy Council, which lobbied against the bill. Deo also said Thursday's vote "truly represents the majority of the people in the Garden State."

But, that too, is also an uncertain trek in a Democrat-controlled Legislature, which must approve any ballot question by a three-fifths majority in both houses. And Christie is not likely to make such a cause a priority – he has made fixing the state's finances and lowering property taxes a top priority. Taking up same sex marriage could also stir up the party's conservative wing, which could make the question a litmus test in GOP legislative primaries in 2011.

As Deo fielded questions from the press in a State House conference room, he was briefly interrupted by Goldstein, who returned to the room to look for his coat. Goldstein then turned to Deo, grabbed him, and gave him a couple of good-natured smooches on his cheek. "Chill out!" Goldstein said to the embarrassed combatant.

It was not a farewell kiss. It was just a way of needling a respected enemy whom he will battle again, quite possibly for years to come.